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Hamas, the Gaza War and Accountability, Under International Law Updated Proceedings of an International Conference on June 18, 2009

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Hamas, the Gaza War and Accountability, Under International Law Updated Proceedings of an International Conference on June 18, 2009 Hamas, the Gaza War and Accountability, under International Law Updated Proceedings of an International Conference on June 18, 2009 Hamas Activity in Northern Gaza Jerusalem Center for Public Affairs KONRAD-ADENAUER-STIFTUNG המרכז הירושלמי לענייני ציבור ומדינה )ע"ר( קרן קונרד אדנאור Hamas, the Gaza War and Accountability, under International Law Updated Proceedings of an International Conference on June 18, 2009 Maj.-Gen. (res.) Yaakov Amidror | Prof. George P. Fletcher | Dr. Dore Gold | Dr. Lars Hänsel | Sigall Horovitz, Adv. | Col. Richard Kemp CBE | Maj. Gil Limon | Col. (res.) Daniel Reisner | Dr. Roy S. Schondorf | Col. (ret.) Pnina Sharvit-Baruch | Prof. Gerald Steinberg Jerusalem Center for Public Affairs KONRAD-ADENAUER-STIFTUNG המרכז הירושלמי לענייני ציבור ומדינה )ע"ר( קרן קונרד אדנאור © 2011 Jerusalem Center for Public Affairs and the Konrad Adenauer Stiftung The opinions expressed by the authors of this publication do not necessarily reflect those of the Konrad Adenauer Stiftung. 13 Tel Hai Street, Jerusalem, Israel Tel. 972-2-561-9281 Fax. 972-2-561-9112 Email: [email protected] www.jcpa.org Editor: Mark Ami-El Production Director: Edna Weinstock-Gabay Production Coordinators: Odelia Zaguri, Adam Shay Graphic Design: Studio Rami & Jacky / Elisheva Cohen - www.ramijaki.co.il Photo Credits: Cover Photo - IDF spokesperson, AP Images, Michael Mass, UN website ISBN 978-965-218-090-2 Contents Opening Remarks Dr. Lars Hänsel 4 Introduction: The Dangerous Bias of the United Nations Goldstone Report Dr. Dore Gold 7 International Law’s Limitations on Contending with Terror Dr. Roy S. Schondorf 13 Redifining the Law of Armed Conflict? Legal Manipulations regarding Israel’s Struggle Against Terrorism Maj. Gil Limon 19 Accountability of Hamas under International Humanitarian Law Sigall Horovitz, Adv. 29 International Law and Military Operations in Practice Maj.-Gen. (res.) Yaakov Amidror 47 International Law and Military Operations in Practice Col. Richard Kemp CBE 51 International Law and Military Operations in Practice Col. (res.) Daniel Reisner 61 Asymmetric Conflicts and the Rules of War Col. (ret.) Pnina Sharvit-Baruch 67 Self-Defense and the Dignity of States Prof. George P. Fletcher 73 “Lawfare” Prof. Gerald Steinberg 77 About the Jerusalem Center for Public Affairs 82 About the Konrad-Adenauer-Stiftung 84 Opening Remarks Dr. Lars Hänsel Dr. Lars Hänsel is Director of the Israel Office of the Konrad-Adenauer-Stiftung. I am very pleased to welcome you here on behalf of the Konrad Adenauer Stiftung to this joint conference together with the Jerusalem Center. The Konrad Adenauer Stiftung is a political organization which promotes democracy, rule of law, social market economy, and human rights in Germany, as well as in nearly one hundred countries all over the world. Germany and other countries in the European Union have a privilege that Israel does not enjoy. The European Union and Germany have lived in peaceful times for more than sixty years. This is one of the reasons that there is a broad consensus in Europe that there is no military solution to political problems. I am also sure that this conviction is shared here in Israel, but with one major difference concerning the conclusion. In Germany and in European countries, the conclusion would be that if there is no military solution, then don’t use military means. In Israel there is broad support for military action. Israelis know that even if there is no military solution, sometimes it is necessary to answer militarily, due to the hostile environment in which Israel lives. Sometimes you have to react militarily, even if this cannot produce long-term solutions. I am sure that also in Israel long-term solutions are seen only in a negotiated peace agreement with the Palestinians. Therefore, having sometimes to use military force puts Israel in a very difficult situation, including moral dilemmas which are even more complicated than using force against non-state actors like Hamas. Since international law was mainly formulated for inter-state conflicts, the question is if and how international law applies for this specific situation. In these kinds of conflicts, the law and its interpretation, in particular, also becomes a means to further the interests of the parties. The law is often used to delegitimize Israel and its self-defense actions. Many support Israel’s right 4 to self-defense until the moment when Israel exerts that right, as in the case of Gaza, after years of rocket attacks from the Gaza Strip. During the Gaza operation, the pictures of suffering in Gaza made it difficult for many abroad to judge what the reason was for this suffering. In the war of pictures, Israel was always on the defensive, since there is a moral decision in Israel not to publish pictures or footage of dead people. However, compassion for those suffering should not hide the reason for the suffering. The reason was clearly because of Hamas and not Israel, because Hamas did not use its rule in the Gaza Strip for developing the economy and society, but used its power to build up its arsenal of weapons. Hamas did not take responsibility for the civilian population; on the contrary, Hamas made cynical use of civilians during the Gaza operation. Angela Merkel took a key position when she commented, during the first stage of the operation, that nobody should mix up the cause and effect of the situation. Israel is facing major military, moral, and legal challenges. I hope that our conference will contribute to clarifying how Israel can better cope with the legal challenges in fighting terrorist organizations such as Hamas. I think that it is not only Israel’s challenge to deal with non-state military actors. We will see more in Germany and Europe since Germany has troops fighting terror groups in Afghanistan and sometimes finds itself in a similar dilemma as Israel. This conference might also serve as a starting point for a dialogue between Israel and Germany about how to combat terror groups and to adhere to international standards. 5 The Goldstone Commission, July 7, 2009 6 Introduction: The Dangerous Bias of the United Nations Goldstone Report Dr. Dore Gold Dr. Dore Gold, former Israeli Ambassador to the UN, is President of the Jerusalem Center for Public Affairs. The UN Fact-Finding Mission on the Gaza War, known more popularly as the Goldstone Report, best illustrates the fundamental problems associated with reliance on international mechanisms for assuring true accountability in a conflict like Operation Cast Lead. The Goldstone Report turned out to be heavily flawed. Originally, it was the initiative of the Geneva-based UN Human Rights Council, which named South African Justice Richard Goldstone to head it. It was promoted at the time by Cuba, Egypt, and Pakistan – not exactly the beacons of human rights – and had no support from Western democracies. Strictly speaking, the report was primarily directed against Israel, which was seeking to bring to a complete halt the indiscriminate rocket and mortar fire by the international terrorist organization Hamas against Israeli towns and villages, that had been going on for nearly eight years. The Goldstone Report alleged that Israeli troops had committed “war crimes” by attacking purely civilian targets in the Gaza War. To make matters worse, the report failed to link Hamas to any violations of the laws of war, even though its continuing rocket attacks on Israeli civilians caused the Gaza War to begin with. There was only mention of anonymous “Palestinian armed groups.” It is probably for that reason that the Hamas second-in-command in Damascus, Musa Abu Marzuq, told the Saudi satellite channel Al-Arabiya that “the report acquits Hamas almost entirely.” The net results of this attempt to create accountability in the war on terrorism were actually dangerous for pursuing the war against terror in the future. For what emerged was that an official report, with the stamp of the United Nations, made serious, but largely unsubstantiated, allegations about a state engaged in lawful self-defense, while letting the aggressor, an international terrorist organization, completely off the hook. Running through the report in incident 7 after incident is the charge that Israel intentionally attacked civilian targets. It did not conclude that civilian injuries were a product of collateral damage that occurs in many wars, but rather it resulted from a deliberate policy of the IDF. Israeli President Shimon Peres understandably called the Goldstone Report “scandalous” when he met UN Secretary-General Ban Ki-Moon in Jerusalem on March 20, 2010. How did the Goldstone team produce such a result? It is essential to understand that its members had a very specific outlook of the nature of this kind of armed conflict that affected their conclusions. Colonel Desmond Travers of Ireland was the senior military figure on Goldstone’s panel and probably its most important member after Justice Goldstone. In a wide-ranging interview in Middle East Monitor from February 2, 2010, he utterly rejects that there is something called “asymmetric warfare” in which insurgent forces are introducing civilians into the battlefield against modern armies in a way that changes the nature of warfare. This outlook directly affected what Travers and his colleagues looked for as they gathered evidence, and how they went about the interviews that they conducted with Palestinians in the Gaza Strip. Muhammad Abu Askar told the Goldstone panel that his house had been “unjustly” blown up by Israel. Yet his son Khaled worked for the military supply unit of Hamas and Iranian-supplied Grad rockets that were fired at Israel were stored in the cellar. Take, for example, the case of Muhammad Abu Askar, a longtime Hamas member who served as the director-general of the Ministry of Religious Endowments in the Gaza government.
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